CBDT vide letter dated 11-07-2016 has provided three revised format of issuing notices u/s 143(2). 1. Limited Scrutiny 2. Complete Scrutiny 3. Mannual Scrutiny
CBDT vide letter dated 11-07-2016 has provided three revised format of issuing notices u/s 143(2).
- Limited Scrutiny
- Complete Scrutiny
- Mannual Scrutiny
In Limited Scrutiny, issues identified for examination to be specified. Notice for Complete scrutiny shall specify that case is selected for complete scrutiny. In case of manual scrutiny, specific parameter for selection of case along with reference to manual instruction no. of compulsory scrutiny guidelines shall be given.
Assessee is required to produce evidence in support of his return or if assesse wishes to send no evidence, he may send his communication to AO.
If on the basis of response of assesse, any adverse view is contemplated, show cause notice/questionnaire shall be given .
In case of Ahemadabad, Bengluru, Chennai, Delhi , Hyderabad , Kolkatta and Mumbai, it is to be stated in notice that email based assessment is proposed to be made. Email id provided by assesse in return or alternate id provided by the assesse shall be used for the purpose. Assessees not wishing to opt for email based assessment may convey refusal to AO. Subsequent withdrawl from email based assessment is possible only with prior permission of AO.
Also in Instruction No. 20/2015 dated 29-12-2015, CBDT had mentioned that AO to provide reasons for scrutiny in cases which have been selected on the parameter(s) of AIR/CIB/26AS data . Further Specific issue based enquiry is to be conducted only in those scrutiny cases which have been selected on the parameter(s) of AIR/CIB/26AS data. In such cases, the Assessing Officer, shall also confine the Questionnaire only to the specific issues pertaining to AIR/CIB/26AS data
Tug of War for Limitation period for penalties not linked to assessment of Income like 271D/271E/271C imposable by Range Heads i.e. Joint Commissioners
Under Section 271D penalty is imposable by Joint Commissioner for failure to comply 269SS i.e. accepting loan or deposit for Rs. 20,000/- or more otherwise than through account payee cheque equal to amount of loan or deposit. Similarly Under Section 271E, there is penalty for repayment of the amount of loan or deposit otherwise than through account payee cheque, where loan or deposit is outstanding for Rs. 20,000 ruprees or more.
In the case of World wide Township Projects, there were certain credits in the balance sheet of the assesse, which he explained were on account of land purchased on his behalf by certain persons. AO said that since the transaction falls u/s 269SS, penalty proceedings are liable to be initiated. Although, the Assessing Officer, by its assessment accepted the income as returned by the assessee he issued directions for initiating penalty proceedings under Section 271D of the Act for alleged violation of the provisions of Section 269SS/269T of the Act. CIT A rejected the appeal filed by the assesse. Penalty thereafter was imposed. The assesse in appeal contended that penalty order is barred by limitation.
U/s 275(1)(a), where relevant assessment order is subject matter of appeal penalty order can be passed
- a)before the expiry of financial year in which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed OR
- b)within one year from the end of the financial year in which the order of the Commissioner (Appeals) is received by the 2[Principal Chief Commissioner or] Chief Commissioner or2[Principal Commissioner or] Commissioner,
which ever is later
However, it was opined by the Delhi High Court in World Wide Township Projects that penalty u/s 271D/E has no relevance to assessment of Income and also the appeal proceedings there to have no relevance to initiation of penalty proceedings for violation of S. 269SS/T.
Hence section 275(1)(c) shall be invoked in such a case and hence limitation period shall be later of :
- a)the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed OR
- b)six months from the end of the month in which action for imposition of penalty is initiated.
Since the period of limitation u/s 275(1)(c ) had expired in the above case, no penalty can be levied u/s 271D/E
Also Rajasthan High Court in Hissaria Bros 291 ITR 244 (Raj.) has held that to interpret otherwise shall result in provisions of S. 271D/E being declared redundant. High Court held that the same is also true for penalty levied for non deduction of tax.
CBDT in circular No. 10/2016 dated 26-04-2016 has accepted the above position of law.
And has taken a stand that in case of penalties not linked to assessment, limitation period shall be governed by S. 275(1)(c) and not 275(1)(a)
The next issue comes the Determination of point of initiation of penalty because penalty limitation period is end of financial year in which penalty proceedings initiated or six months from the end of month in which penalty proceedings initiated.
Hence whether penalty shall get initiated during assessment proceedings mentioning the default in his assessment order or when penalty notice is issued by Joint Commissioner.
Kerala High Court in Grihlaxmi Vision [63taxmann.com 196] has pronounced that from statutory provision, it is clear that the competent authority to levy penalty is the Joint Commissioner. Therefore, only the Joint Commissioner can initiate proceedings for levy of penalty. Such initiation of proceedings could not have been done by the Assessing Officer. The statement in the assessment order that the proceedings under sections 271D and E are initiated is inconsequential. On the other hand, if the assessment order is taken as the initiation of penalty proceedings, such initiation is by an authority who is incompetent and the proceedings thereafter would be proceedings without jurisdiction. If that be so, the initiation of the penalty proceedings is only with the issuance of the notice issued by the Joint Commissioner to the assessee to which he has filed his reply
CBDT in Circular 9/2016 dated 26-04-2016 has asked officials to follow Grihlaxmi Vision (Kerala High Court) and has termed it as “Departmental View”. Special Bench of ITAT Chandigarh in Dewan Chand Amrit Lal (2006) 98 ITD 200 has upheld the same view.
CBDT has also stated that The Assessing Officer, (below the rank of Joint Commissioner of Income Tax) shall not issue the notice in this regard. The Range Head will issue the penalty notice and shall dispose/complete the proceedings within the limitation prescribed under section 275(1)(c) of the Act.
However Rajasthan High Court in Jitendra Singh Rathore [2013] 31 taxmann.com 52 (Rajasthan) has pronounced that “………………that even when the authority competent to impose penalty under Section 271D was the Joint Commissioner, the period of limitation for the purpose of such penalty proceedings was not to be reckoned form the issue of first show cause by the Joint Commissioner; but the period of limitation was to be reckoned from the date of issue of first show cause for initiation of such penalty proceedings………….”
The decision of Rajasthan High Court has been followed by ITAT Rajkot in Dipak Kantilal Takvan [2013] 39 taxmann.com 53 (Rajkot – Trib.) (TM) and Jaipur Tribunal in MDS University [2014] 49 taxmann.com 297 (Jaipur – Trib.) JANUARY 23, 2014
Lawyers presumed to Know law, not judges
There is presumption in law that lawyer knows the law but there is no absolute presumption that a judge should know the law. A Judge is only called upon to balance the two sides of an argument presented before him
Rajiv Narain Raina inPunjab and Haryana High Court in Nirmal Singh and Others vs. Tarsem Singh and Others [CR No. 3791 of 2013 (O&M) dated 01-05-2014]
No Addition u/s 69C for actual expenditure lesser than presumptive expenditure
Under Section 44AD, 8% of Income is presumed to be Income of the assesse. Hence automatically 92% shall be presumed to be expenditure of the assesse. Now, if assesse through his cash flow is not able to prove expenditure of 92%, but is able to substantiate much lesser expenditure, whether AO can invoke section 69C saying that source of balance expenditure [92%- Actual Expenditure] is not satisfactorily explained especially when section 44AD does not over ride section 69C.
Held by ITAT Chandigarh in Nand lal Popli [2016] 71 taxmann.com 246 (Chandigarh – Trib.)]
- a)Section 69C can be applied only if assesse has incurred some expenditure and not otherwise
- b)Asking the assessee to prove to the satisfaction of the Assessing Officer, the expenditure to the extent of 92% of gross receipts, would defeat the purpose of presumptive taxation as provided under section 44AD of the Act or other such provision. Since the scheme of presumptive taxation has been formed in order to avoid the long drawn process of assessment in cases of small traders or in cases of those businesses where the incomes are almost of static quantum of all the businesses,
Addtion u/s 69C can be made only once the case is carved out of glitches of S. 44AD. Hence no addition is sustainable u/s 69C
Cash flow statement cannot be considered as keeping the books of account
Keeping or preparing a cash flow statement cannot be considered as keeping the books of account.[Para 15 of Judgement in case of Nand lal Popli [2016] 71 taxmann.com 246 (Chandigarh – Trib.)]
No Capital Gain without incurring cost
Where Whole amount of sale consideration was taxed by the Assessing Officer as capital gains without giving assessee any benefit with regard to cost of acquisition or cost of construction because the assesse could not prove the expenditure.
Held by ITAT that It can be nobody’s case that the assessee had acquired the property without paying any cost. Some value for cost of acquisition has to be given to the assessee. Even in cases of properties acquired through gifts, etc. the cost of acquisition as incurred by the previous owner is given to the assessee.
Nand lal Popli [2016] 71 taxmann.com 246 (Chandigarh – Trib.)]
While making estimated addition AO can not make a pure guess Dhakeswari Cotton Mills Ltd [1954] 26 ITR 775 (SC
As regards the second contention, although ITO is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a court of law, but there the agreement ends; because it is equally clear that in making the assessment under section 23(3) he is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all and there must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh v. CIT [1944] 12 393. In the instant case, the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly, it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next, it did not give any opportunity to the assessee to rebut the material furnished to it by him, and lastly, it declined to take all the material that the assessee wanted to produce in support of its case. The result was that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales, both by the ITO and the Tribunal, was based on surmises, suspicions and conjectures. The Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills but did not show that statement to the assessee did not give him a opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It was not known whether the mills which had disclosed these rates were similarly situated and circumstanced. Not only did the Tribunal not show the information given by the representative of the department to the assessee, but it refused even to look at books and papers which assessee’s representative produced before the Accountant Member in his chamber. The assessment in this case and in the connected appeal, was above the figure of Rs. 55 lakhs and it was just and proper when dealing with a matter of this magnitude not to employ unnecessary haste and show impatience, particularly when it was known to the department that the books of the assessee were in the custody of the Sub-Divisional Officer. Thus both the ITO and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It was thus a fit case for the exercise of power under Article 136.
Facts that profits were low and that there was no stock register maintained by assessee were not materials upon which finding under section 13 [1922 Act] could be based: Pandit Bros 26 ITR 159 (P&H)
Gross profit rate couldn’t be computed with reference to returns of subsequent years : J&K High Court
Nek Ram Sharma & Co. [2017] 85 taxmann.com 176 (Jammu & Kashmir) 19-08-2017
The appellant firm is a partnership firm which was constituted for the purpose of execution of purchase contract of bulk timber worth over Rs. Three crores from Jammu and Kashmir State Forest Corporation .The appellant had made the sales below the cost price to unidentifiable parties.
CIT A adopted the GP ratio of subsequent years to make the addition in second innings of the proceedings, because record of earlier years was not available.